The country is holding its breath for the Supreme Court's response to the Trump administration's continuous looting, but it's difficult to focus on anything else. Nevertheless, the lawsuit set up for discussion next month before the court debate deserves more attention than the smallest received, given the possibility of destabilising public education. The central question is whether, as in almost all states, states that allow charter schools as alternatives to traditional public schools, must agree to fund something that is explicitly religious.
To emphasize: the court is not required to determine the state Mayif that is chosen, include taxpayer-funded parochial schools in the charter school offering. That question alone will challenge a long-standing understanding of the separation of church and state in the context of public education. This case goes further. It concerns what will become the first fully taxpayer-supported religious school in modern American history. St. Isidor of the Seville Catholic Virtual School, the internet-based “virtual” Catholic school that the Archdiocese of Oklahoma City and the Diocese of Tulsa are seeking to work on, will promote the “Church Evangelization Mission.” The question is whether it is the constitution need Oklahoma allows schools to open virtual doors as public charter schools.
This is far from the first clash between the two First Amendment religious provisions, the protection of the “free movement” of religion, and the prohibition on the official “establishment” of religion. However, this case reaches the court at the time of a rapid change in the judicial treatment of the relationship between the two provisions. Until recently, the Supreme Court was willing to manage the inherent tension between the two clauses by giving each weight.
For example, the issue with the case in 2004 was the constitutionality of the explicit exclusion of states that explicitly excluded ministerial studies from the eligibility of otherwise widely available state scholarship programs. A student who wanted to use the scholarship to study for the ministry argued that his inability to do so was in violation of the Liberal Movement Clause. The court rejected the argument and held that, if the establishment clause was chosen by the state, the free exercise clause would not impose such a requirement, but that the state would have allowed the grant to ministerial training.
In refusing to argue that the state has burdened the free exercise of religion, the court said the state has not punished or criminalised religious services or rituals, banning ministers from participating in community issues, and requiring students to choose religious beliefs and receive government benefits. Instead, the court said, “The state simply chose not to fund a clear category of leadership.”
The court's goal was to maintain “play at the joints” between the two clauses that were frequently tense with each other, and Chief William Lanequist, Lock v. I wrote it in a majority opinion on Davy.
However, “playing in the joint” has fallen out of favor in the current courts. In the 2022 case, Carson v. Makin, the question was whether the state could exclude religious schools from programs that allowed people who lived far from public middle schools to be sent elsewhere at state costs. The court found that by excluding religious schools from eligibility, it violated the free rights of parents who chose religious schools. Ultimately, the 2004 decision turned out not to represent the broad principle of maintaining a balance between the two religious clauses. John Roberts, Prime Minister Lanequist's successor, was Lock V. Davy writes that it should be interpreted as applying only to that exact fact, and that it should not be interpreted as not to read beyond the narrow focus of a professional religion degree.
In a series of cases that began and reached its peak in the early 2000s, the court replaced the establishment clause with what at first glance would have been concerned with the seemingly infinite principle of non-discrimination. Furthermore, court calls of free exercise clauses in these cases rely on the notion that when parents choose commonly available financial subsidies, such as vouchers or tax credits, for religious use, it is a private choice that the government does not play a role.
Charter Education Board V, a virtual Catholic school throughout Oklahoma. The challenge in the case involving Drummond is that whether the court can maintain the fiction of personal choice is no longer a matter of individuals dictating national tuition subsidies to religious private schools. St. Issidor will be a taxpayer-funded public school, like other charter schools currently attending around 50,000 Oklahoma students.
Or, the Oklahoma Supreme Court took place last June when it declared that the approval of St. Isidor of the state's Charter School Board of Trustees violated the federal establishment provisions, the Oklahoma Constitution and the state law governing charter schools.
“Under the law,” the state court wrote, referring to the Oklahoma Charter School Act, “Charter Schools are public schools.” The court said charter schools do not have several state regulations, but they must comply with many other rules that apply to regular public schools. Their teachers are eligible for the same state retirement benefits as other public school teachers, the court observed. “St. Isidor, like other state-sponsored charter schools, will act as a national agent in providing free public education,” the court said. “What St. Isidor requests from this court exceeds the fair treatment of private religious institutions in receiving generally available benefits, implying a free movement clause: the creation and funding of a new religious institution that violates the establishment clause of the state.”
As state courts stressed, the characterization of St. Isidor as a public school is important because it is only in that case that the federal constitution is applied. The Charter School Board and St. Issidou's own right are both suing Oklahoma court decisions, but they vehemently argue with judicial authorities that schools are actually private and that the principle of non-discrimination should settle the case. “St. Isidor is not the Oklahoma government's arm,” the school said in a petition seeking a Supreme Court review, “and Oklahoma has clearly violated its free movement rights by cutting it from the benefits created by the Charter Schools Act.”
The school is represented by Supreme Court appeals by lawyers, including Notre Dame Law School's Religious Freedom Clinic. That's probably because Judge Amy Connie Barrett, who spent 15 years as a law professor at Notre Dame and had taught classes on the bench, rejected the case. The Charter School Committee is represented by the Alliance Defending Freedom, a prominent Christian litigation group that has recorded a series of recent victories in the Supreme Court.
The incident is deeply entwined with Oklahoma politics. State Attorney General Gentner Drummond sued the Charter School Board to prevent the school from opening. State governor J. Kevin Stitt was a strong supporter of the school and submitted his own brief. Both officials are Republicans.
Before the board approved the St. Isidor's Charter, Drummond had warned against the creation of “slippery slopes” that would force all religious organizations to approve the charter school application. The warning was valid as long as it went on, but it should have gone on further. Yes, Muslim madrasas trying to incorporate as charter schools are likely to cause controversy, but the issue is much broader. It's easy to imagine scrambling public resources among mainstream faith groups. Each one has a curriculum in mind. As of 2021, approximately 3.7 million students are enrolled in public charter schools across the country. If available at taxpayer's expense, could millions be drawn to safely silent religious education? And who is left in secular public schools?
A quarter-century ago, devout Anglican and strict separatist Judge David Starr opposed a decision that expanded the eligibility of religious schools for different types of equipment and other public resources.
“The ban on establishing government religious funding has served on multiple edges,” the now-retired Justice wrote in her dissent in Mitchell v. Helms. “It is intended to guarantee the right of individual conscience to impulses, protect the integrity of religion against the corrosion of secular support, and protect the implicit exclusion of controversy over public support to religious causes and the unity of political society against hostility.”
The warning is even more timely than it is now, as it surged Christian nationalism in response to the country's evolving demographics.
This case will make the Supreme Court elect. If St. Isidor of Sebil Catholic Virtual School is a public school, the court can only uphold it by further erasing the establishment clause. If we determine that justice is private enough to avoid its reach of the Constitution, it invites further fragmentation of public education, one of the few experiences most Americans share. It may not be very often to suggest that the future of an increasingly vulnerable civil society is at stake at this moment for the courts and the nation.
